ATA SOFTWARE MASTER LICENSING AGREEMENT

The following are the terms and conditions under which ATA Engineering, Inc. (“ATA”) licenses its standard software on a perpetual basis.

  1. Definitions:

1.1.   Licensed Program(s) means the executable code version of the ATA software designated by ATA in its proposal to Customer and listed on Customer’s purchase order as well as related documentation.

1.2.   Computer System means the computer hardware equipment on which Customer has elected to install and/or execute Licensed Program(s).

  1. License Fee:

2.1.   The one time (perpetual) license fee is the fee stated by ATA in its proposal to Customer.

  1. License Grant:

3.1.   Licensed Program(s), including any documentation relating to or describing such Licensed Program(s) such as, but not limited to, user manuals, now or hereafter provided by ATA, are furnished to Customer under a non-exclusive, non-transferable license solely for Customer’s own use on the single designated Computer System only on which each Licensed Program is first installed. The Licensed Program(s) may only be copied with the proper inclusion of ATA’s copyright notice for use on such single Computer System for archival and back-up purposes. The Licensed Program(s) may not be reverse compiled, disassembled or otherwise reverse engineered.

3.2.   If Customer is unable to operate the Licensed Program(s) on the Computer System due to equipment malfunction, the Licensed Program(s) may be transferred temporarily to another Computer System during the period of equipment malfunction.

  1. Installation:

Customer shall install the Licensed Program(s) only on Customer’s Computer System.

  1. Title:

No title to or ownership in the Licensed Program(s) is transferred to Customer. Title to and all applicable rights in patents, copyrights and trade secrets in the Licensed Program(s) shall remain in ATA or third parties from whom ATA has obtained rights to license the Licensed Program(s). Licensed Program(s) provided hereunder, including the ideas, concepts, know-how and technology contained therein, are proprietary and confidential to and contain trade secrets of ATA or third parties from whom ATA has obtained rights to license the Licensed Program(s), and Customer agrees to be bound by and observe the proprietary, confidential and trade secret nature thereof as herein provided. Customer agrees to take appropriate action by instruction or agreement with its employees who are permitted access to the Licensed Program(s) to fulfill its obligations hereunder. Except as may be permitted in writing by ATA, Customer shall not provide, or otherwise make available, the Licensed Program(s) or copies thereof to any third party.

  1. Term and Termination:

6.1.   The term of the license is perpetual from the date of Customer’s Purchase Order.

6.2.   ATA shall have the right to terminate Customer’s license if Customer fails to pay any required license fee(s) or otherwise fails to comply with these license terms and conditions. ATA shall give written notice to Customer of such default and if such default has not been remedied within 30 days after such notice, this license shall terminate.

6.3.   Customer agrees, upon expiration of the license term or upon termination by reason of Customer’s default, to immediately return or destroy the Licensed Program(s) and copies thereof as directed by ATA and, if requested by ATA, to certify in writing as to the destruction or return of the Licensed Program(s) and all copies thereof.

  1. Warranty:

7.1.   ATA warrants that for a period of 90 days after delivery of licensed program(s) to customer, the licensed program(s) will perform in accordance with the ATA user documentation. In the event the licensed program(s) do not perform in accordance with the user documentation, then during the 90 day warranty period ATA shall at its option (i) correct any variance between licensed program(s) performance and licensed program(s) user documentation; or (ii) replace the licensed program(s) media. The foregoing shall be customer’s sole and exclusive remedy for error or defect in the licensed program(s).

7.2.   The above warranties are in lieu of all other warranties, express, implied or statutory, which warranties are hereby disclaimed, including the warranty of merchantability and fitness for a particular purpose.

  1. Patent and Copyright Indemnification:

ATA shall defend any action, suit, or proceeding brought against Customer in so far as it is based on a claim that the Licensed Program(s) delivered hereunder infringe any United States patent or copyright issued or registered as of the date of this Agreement provided that ATA is promptly notified by Customer of the action and given full authority, information and assistance (at ATA’s expense) for the defense of the action. ATA shall pay all damages and costs awarded therein against Customer, but shall not be responsible for any compromise made without its consent. ATA may, at its option and expense, replace or modify the Licensed Program(s) so that infringement will not exist or refund to Customer the price thereof as depreciated or amortized by an equal annual amount over the lifetime of the Licensed Program(s) as established by ATA. ATA’s commitment shall not extend to any infringement or claim thereof which is based upon the combination of the Licensed Program(s) delivered hereunder with software not supplied by ATA.

  1. Use of Licensed Program(s) and Limitation of Liability:

9.1.   Customer shall retain full control over the use of the Licensed Program(s) and any modifications or enhancements thereof as well as Customer’s use of any recommendations provided by ATA during the course of providing services under any other Schedule of this Agreement.  Accordingly Customer agrees to be solely responsible for the design, repair and configuration of Customer’s equipment, machinery, systems and/or products. Customer assumes all risks and liability for results obtained by the use or implementation of the designs in any way influenced by the use of the Licensed Program(s) or the provision of services, whether such designs are used singly or in combination with other designs or products. Customer agrees that ATA shall have no liability to the Customer or to any third party for any ordinary, special or consequential damages or losses which might arise directly or indirectly by reason of the Customer’s use of the Licensed Program(s) or the provision of services. Customer shall protect, indemnify, hold harmless and defend ATA of and from any loss, cost, damage or expense, including attorney’s fees, arising from any claim asserted against ATA that is in any way associated with the matters set forth in this Paragraph 9.1.

9.2.   With respect to any claim not subject to Section 9.1., the liability of ATA for any claim hereunder, regardless of the form of action, whether in contract or tort, including claims of negligence against ATA, shall be limited to the total of all amounts Customer has paid to ATA for the Licensed Program(s) or services that are alleged to have caused damages or that is related to the cause of action.  In no event shall ATA be liable for any incidental or consequential damages including, without limitation, loss of use, loss of profits or other consequential damages, even if ATA has been advised of the possibility of such damages.  No action, regardless of form, arising out of the transactions under this Agreement may be brought by Customer more than two years after the cause of action has occurred.

  1. Maintenance and Support:

Customer may elect to purchase Maintenance and Support services during the term of this license under the provisions of the attached Maintenance and Support Schedule.

  1. Proprietary Rights:

Information and data supplied by ATA with the Licensed Program(s) delivered hereunder, such as, but not limited to, user manuals and documentation, are confidential and proprietary to ATA and contain trade secrets of ATA.  Such information and data are furnished solely to assist Customer in the installation, operation and use of the Licensed Program(s). All such confidential and proprietary information and data shall be so marked and Customer agrees to abide by the terms of such markings and not to reproduce or copy such data except as is reasonably necessary for proper use of the Licensed Program(s).

  1. Export:

12.1.  Customer acknowledges that the Licensed Program(s) provided hereunder may be subject to export controls.  Customer agrees that any Licensed Program(s) licensed hereunder will not be exported (or re-exported from the country where it was first installed), directly or indirectly, separately or as part of a system, without Customer, at its own cost, first obtaining all licenses from the United States Department of Commerce and any other appropriate agency of the United States Government as may be required by law.

12.2.  Customer acknowledges and agrees that it shall not use the Licensed Program(s) in the design, development, production, stockpiling or use of chemical or biological weapons nor shall it use the Licensed Program(s) for facilities which are intended to produce chemical weapons or chemical weapon precursors, unless a validated export license is obtained from the U.S. Department of Commerce where required.

12.3.  Customer further acknowledges and agrees that it shall not use the Licensed Program(s) either directly or indirectly to design, develop, fabricate or test nuclear weapons or nuclear explosive devices or to design, construct, fabricate, operate or construct components for facilities:  for the chemical processing of irradiated special nuclear or source material; for the production of heavy water; for the separation of isotopes of source and special nuclear material; or for the fabrication of nuclear reactor fuel containing plutonium unless a validated export license is obtained from the U.S. Department of Commerce where required.

  1. Taxes:

The license fees and any other amounts payable pursuant to this Agreement are exclusive of all national, state, regional, local, municipal or other taxes and fees including, but not limited to, excise, sales, use, property, intangibles, goods and services and value added taxes, customs duties and registration fees, now in force or enacted in the future, and all such taxes and fees, except taxes based on ATA’s net worth, capital or net income, shall be paid directly by the Customer, or if paid by ATA, Customer will reimburse ATA.

  1. Notice:

All notices required to be given hereunder shall be in writing. Notice shall be considered delivered and effective upon receipt when sent by registered or certified mail, return receipt requested, addressed to the parties as set forth above. Either party, upon written notice to the other, may change any name or address to which future notice shall be sent.

  1. Uncontrollable Circumstances:

If the performance of any part of this Agreement by ATA or Customer is prevented or delayed by acts of civil or military authority, flood, fire, epidemic, war or riot, or other acts beyond the reasonable control of either party, the party affected shall be excused from such performance only during the continuance of any such event; provided, however, that if such delay in performance extends for more than 60 days, the other party, at its discretion, upon giving written notice, may terminate this Agreement

  1. Regulations for Federal Acquisition:

If Customer is a unit or agency of the United States Government, the following provisions apply:

(i) if the Licensed Program(s) are supplied to the Department of Defense (DOD), the Licensed Program(s) are classified as Commercial Computer Software and the Government is obtaining only “restricted rights” in the Licensed Program(s) and its documentation as that term is defined in Clause 252.227-7013(c)(1) of the DFARS; and

(ii) if the Licensed Program(s) are supplied to any unit or agency of the United States Government other than DOD, the Government’s rights in the Licensed Program(s) and its documentation will be as defined in Clause 52.227-19(c)(2) of the FAR or, in the case of NASA, in Clause 18-52.227-86(d) of the NASA Supplement to the FAR.

  1. Freight Terms:

Licensed Product(s) shall be delivered duty unpaid (Incoterms 1990) at the destination agreed upon by the parties.  Customer shall promptly notify ATA of any shipment lost or damaged, and shall render reasonable assistance to ATA in tracing lost shipments

  1. General:

18.1.  Customer may not assign any of its obligations, rights or remedies hereunder and any such attempted assignment shall be null and void.

18.2.  Customer shall not in any manner or form disclose, provide or otherwise make available, in whole or in part, any Licensed Program(s) and/or documentation to any third parties.

18.3.  The waiver or failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder. This Schedule constitutes the entire terms and conditions between the parties with respect to the subject licensing of the Licensed Program(s) on an annual basis and supersedes all proposals, all previous negotiations and agreements, written or oral, express or implied, between the parties with respect to the license.

18.4.  The terms and provisions contained in Sections 5, 9, 11 and 12 shall survive the termination of this Agreement.

18.5.  This Agreement shall in all respects be governed by and construed in accordance with the laws of the State of California.

MAINTENANCE AND SUPPORT SCHEDULE

The following are the terms and conditions under which ATA agrees to furnish and Customer agrees to accept Software maintenance and support services for the Licensed Program(s) listed on Customer’s Purchase Order.

I. Eligibility Requirements

  1. Services under this Schedule are applicable only to ATA Licensed Program(s).

II. Customer may purchase Maintenance and Support services for the Licensed Program(s) by so indicating on its Purchase Order and payment of the appropriate fees. All such services shall be upon the following terms and conditions:

  1. Maintenance:

ATA shall correct any material variance between Licensed Program(s) performance and Licensed Program(s) user manual description, including the correction of documentation and/or software codes.  ATA shall distribute to Customer corrected Licensed Program(s) as soon as they are available. ATA will respond to Customer’s request for service within a reasonable time considering all circumstances at the time of the request, including the nature of the service required.  ATA shall distribute to Customer those enhancements to the Licensed Program(s) released without restriction by ATA to other licensees. Enhancements include:

a. Licensed Program(s) Enhancements: Versions of Licensed Program(s) which encompass improvements, extensions, and other changes which ATA, in its discretion, deems to be logical improvements or extensions of the original Licensed Program(s) supplied      to Customer.

b. Documentation: Updates and extensions or amendments of user documentation of the Licensed Program(s).

c. System Updates: Customer acknowledges that certain Licensed Program(s) enhancements may require either additional hardware or hardware updates, with respect to the Customer’s original computer system, in order for Customer to gain the full benefits of said enhancements. All costs and responsibilities for such new or additional hardware shall be borne solely by Customer.

  1. Support:

ATA shall provide telephone service to Customer for the purpose of assisting Customer with the application of ATA Licensed Program(s). (Telephone service is defined as “answering questions requiring a nominal amount of time, usually during the same telephone call.”) Visits either to the ATA site by Customer, or to Customer’s site by ATA and services in addition to telephone service will be charged at ATA’s then current labor rates plus expenses. Customer will be informed in advance of incurring any charges.

  1. Fees:

Customer shall pay to ATA an annual fee in advance for the services set forth in this Schedule.

  1. Term:

The right to receive Maintenance and Support pursuant to an extended term license shall be for at least twelve (12) months, but in no event shall any term be for more than twenty-four (24) months.

III.  Warranty and Limitation of Liability

  1. Except as stated in the applicable license schedule, there are no express or implied warranties respecting the agreement, this schedule, and the services provided hereunder, including but not limited to the implied warranties of merchantability and fitness for a particular purpose. The warranties and remedies set forth in the applicable license schedule are exclusive and in lieu of all others, oral or written, express or implied.
  2. ATA will not be liable for any failure or delay in performance due in whole or in part to any cause beyond ATA’s reasonable control. ATA’s liability in connection with the provision of Licensed Program enhancements, corrected versions of the Licensed Program(s) or services hereunder shall be subject to Section 9 of the Standard License Schedule as applicable to the Licensed Program(s).

IV. General

  1. Customer may not assign any of its obligations, rights or remedies under this Schedule and any such attempted assignment shall be null and void.
  2. The waiver or failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder.
  3. Customer agrees that ATA may perform such tests as ATA shall deem necessary to monitor compliance with applicable software licenses at any time, with or without notice, during normal business hours.